2008 JTR(SC) 516
2008 Supp AIR(SC) 1763 ; 2008 AIR(SCW) 2400 ; 2008 224 ELT 519 ; 2008 4 JT 630 ; 2008 4 Scale 401 ; 2008 17 SCC 180 ; 2008 5 SCR 320 ; 2008 KHC 4475 ; 2008 2 Supreme 649
2008(2) Supreme 649
Supreme Court of india
(From CEGAT)
Dr. Arijit Pasayat & P. Sathasivam & Aftab Alam, JJ.
Tata Chemicals Ltd. — Petitioner
versus
Union of India & Ors. — Respondents
Special Leave Petition (civil) 9423-9432 of 2000
With
SLP (C) No. 20463 of 2000, SLP (C) No. 20464 of 2000, T.C. (C) Nos. 44 & 45 of 2002, W.P. (C) No. 23 of 2003, W.P. (C) No. 558 of 2000, T.C. (C) No. 6 of 2001, Civil Appeal No. 7189 of 2005, S.L.P. (C) Nos. 9781-9790 of 2000
Decided on : 24-03-2008
important point
When the determination as contemplated has taken place, appeal would be maintainable to CEGAT.
Act Referred :CUSTOMS TARIFF IDENTIFICATION, ASSESSMENT AND COLLECTION OF ANTI-DUMPING DUTY ON DUMPED ARTICLES AND FOR DETERMINATION OF INJURY RULES : R.18
(A) The referred Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped articles and for determination of injury) Rules, 1995, Rule 18 governs the determination of anti-dumping duties and injury. The Customs Notification dated 27th October, 1998, issued under these rules, imposed anti-dumping duties and was challenged. The Special Leave Petitions and Writ Petitions contested the determination and the Notification, highlighting that an appeal lies against the determination and that the Designated Authoritys order was recommendatory. The impugned order of the Central Excise and Gold Control Appellate Tribunal (CEGAT) did not refer to the Notification, and the earlier Special Leave Petitions were dismissed on the ground that the determination had not yet been made by the Central Government. The subsequent three-Judge Bench clarified that once the Notification was issued, the determination took place and the appeal before CEGAT became maintainable.
(B) The key legal principles are that the Designated Authoritys order is recommendatory and an appeal lies only against the determination; a determination is complete only upon issuance of the Customs Notification; and an appeal against the determination is maintainable only after the Notification is issued.
Facts of the case:
Petitioners filed Special Leave Petitions and Writ Petitions challenging the Customs Notification dated 27th October, 1998, which imposed anti-dumping duty. Earlier petitions were dismissed by a two-Judge Bench on the ground that the determination was yet to be made. A later Bench noted that the challenge was against both the determination and the Notification, and the matter was referred to a three-Judge Bench due to a perceived conflict.
Findings of Court:
The Court found that the Notification dated 27th October, 1998 amounted to a determination under Rule 18, making the appeal before CEGAT maintainable. The earlier dismissal was due to the relevant aspects not being brought to the notice of the Bench.
Issues:
Whether an appeal lies to CEGAT against the determination and the Notification; whether the appeal is maintainable before the issuance of the Notification; and whether the matter should be heard by a three-Judge Bench.
Ratio Decidendi:
The determination under Rule 18 is complete only on issuance of the Customs Notification; prior to the Notification, the Designated Authoritys order is recommendatory and not determinative; once the Notification is issued, the appeal against the determination becomes maintainable.
Result:
The appeals were allowed and the cases were directed to be placed before a Bench of two Honble Judges for disposal on merits.
(A) The referred Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped articles and for determination of injury) Rules, 1995, Rule 18 governs the determination of anti-dumping duties and injury. The Customs Notification dated 27th October, 1998, issued under these rules, imposed anti-dumping duties and was challenged. The Special Leave Petitions and Writ Petitions contested the determination and the Notification, highlighting that an appeal lies against the determination and that the Designated Authoritys order was recommendatory. The impugned order of the Central Excise and Gold Control Appellate Tribunal (CEGAT) did not refer to the Notification, and the earlier Special Leave Petitions were dismissed on the ground that the determination had not yet been made by the Central Government. The subsequent three-Judge Bench clarified that once the Notification was issued, the determination took place and the appeal before CEGAT became maintainable.
(B) The key legal principles are that the Designated Authoritys order is recommendatory and an appeal lies only against the determination; a determination is complete only upon issuance of the Customs Notification; and an appeal against the determination is maintainable only after the Notification is issued.
Facts of the case:
Petitioners filed Special Leave Petitions and Writ Petitions challenging the Customs Notification dated 27th October, 1998, which imposed anti-dumping duty. Earlier petitions were dismissed by a two-Judge Bench on the ground that the determination was yet to be made. A later Bench noted that the challenge was against both the determination and the Notification, and the matter was referred to a three-Judge Bench due to a perceived conflict.
Findings of Court:
The Court found that the Notification dated 27th October, 1998 amounted to a determination under Rule 18, making the appeal before CEGAT maintainable. The earlier dismissal was due to the relevant aspects not being brought to the notice of the Bench.
Issues:
Whether an appeal lies to CEGAT against the determination and the Notification; whether the appeal is maintainable before the issuance of the Notification; and whether the matter should be heard by a three-Judge Bench.
Ratio Decidendi:
The determination under Rule 18 is complete only on issuance of the Customs Notification; prior to the Notification, the Designated Authoritys order is recommendatory and not determinative; once the Notification is issued, the appeal against the determination becomes maintainable.
Result:
The appeals were allowed and the cases were directed to be placed before a Bench of two Honble Judges for disposal on merits.
judgment
Dr. Arijit Pasayat, J. —
1.Since the Special Leave Petitions, Writ Petitions, Civil Appeal and the Transfer Applications involve identical issues, they are taken up together for disposal. When SLP (C) Nos.9423-9432 of 2000 were listed for admission, it was noted that earlier SLP (C) Nos.8203-8212 of 2000 (M/s Saurashtra Chemicals Ltd. v. Union of India & Ors.) filed against the judgment and order dated 21st January, 2000 of Central Excise and Gold Control Appellate Tribunal, New Delhi (in short ‘CEGAT’) were dismissed with the observations that the orders of the Designated Authority, Ministry of Commerce, New Delhi, were recommendatory; and that an appeal lies against determination; and that determination had yet to be made by the Central Government.
2.A two-Judge Bench hearing the Special Leave Petitions (Civil) Nos. 9423-9432 of 2000 noted that the challenge before the CEGAT was not only against the determination of the Designated Authority but also against the Customs Notification dated 27th October, 1998 whereby anti-dumping duty was imposed. The Bench noted that this aspect was not apparently brought to the notice of the Bench when it passed the order dated 11th May, 2000, and the order of CEGAT itself does not refer to the Customs Notification dated 27th October, 1998 which was impugned in the present Special Leave Petitions. The Bench observed that because of the same probably the Court was led to believe that the appeal had been filed before the issuance of the notification of determination. Therefore, the notice was issued in the SLPs. When the matter was heard by a two-Judge Bench on 5.3.2002, the following order was passed :
“It is submitted by Mr. Mukul Rohtagi, learned Additional Solicitor General appearing for the respondents that against the impugned order of the CEGAT a two Judge Bench of this Court by order dated May 11, 2000 declined to entertain the S.L.Ps. filed by another party. In respect of the same impugned order S.L.Ps. Nos.9423-9432/2000 filed by the petitioner, another two Judge Bench by Order dated August 24, 2000 held that the S.L.Ps. would be maintainable and ordered notice. In view of this apparent conflict, submits the learned Additional Solicitor General, the cases may be placed before a three Judge Bench. Mr. Shanti Bhushan, learned senior counsel and the other senior counsel also adopted the same submission. Mr. P. Chidambram, the learned seniors counsel appearing for the petitioner submits that a writ petition is already filed therefore this question may not be relevant. In view of the importance of the question involved in these cases we think that it would be appropriate to place the cases before a three Judge Bench. The Registry, is directed to seek orders from Hon’ble the Chief Justice of India and place the cases before a three Judge Bench preferably at an early date.”
3.The Bench felt that there was conflict in the two orders. The order dated 11.5.2000, referred to above reads as follows :
“We see no reason whatsoever to entertain these special leave petitions. It is perfectly clear now that we have seen the provisions of the Act that the order of the Designated Authority is purely recommendatory. The appeal that lies is against the determination and that determination has to be made by the Central Government. For this reason, we decline to exercise jurisdiction under Article 136 of the Constitution of India and dismiss the special leave petitions.”
The matter was accordingly referred to a three-Judge Bench and that is how the matter is posted before us.
4.The order dated 24.8.2000 clarified the position as to why notice was issued notwithstanding the earlier dismissal of several S.L.Ps. The distinctive feature was challenge to the Customs Notification dated 27th October, 1998. This aspect was not apparently noted by the two-Judge Bench when the matter was taken up on 11.5.2000. It is also noted in the order dated 24.8.2000 that determination as contemplated by Rule 18 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped articles and for determination of injury) Rules, 1995 (in short ‘Rules’) has taken place with the issuance of the Notification dated 27th October, 1998 and, therefore, the appeal could be maintainable to CEGAT. The order dated 24.8.2000 has brought out the clearly distinctive features. Since the order dated 24.8.2000 reflects the correct position the SLPs., therefore, were rightly entertained. The dismissal of the SLPs. by order dated 11.5.2000 was on account of the fact that the relevant aspects were not brought to the notice of the Bench.
5.That being so, we are of the view that the appeals before the CEGAT were clearly maintainable when challenge was to the determination made is clear from the issuance of the Notification dated 27th October, 1998.
6.The cases shall be placed before the Bench of two Hon’ble Judges to be dealt with on merits. Ordered accordingly.
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